The Gauhati High Court has awarded ₹5 lakh compensation to the family of a man who died in police custody following his illegal arrest.

A Division Bench of Justice Kalyan Rai Surana and Justice Susmita Phukan Khaund observed, “...the arrest of Md. Azizur Rahman, since deceased, was illegal, being not in compliance with the statutory and legal requirement of complying with the provisions of Sections 41B, Section 41C, 50 and 50A of the CrPC.”

The observation came in a writ petition filed by the son of Md. Azizur Rahman, who was picked up by police during the intervening night of July 6 and 7, 2012 and brought to Kalain Patrol Post in connection with cases registered following a group clash. Rahman subsequently collapsed and was taken to Kalain FRU and thereafter referred to Silchar Medical College and Hospital, where he was declared brought dead.

The petitioner alleged that his father had died due to custodial torture and sought an independent enquiry, departmental action against the police personnel and compensation. He relied upon the circumstances in which Rahman was taken into custody and statements of alleged eyewitnesses. The petitioner also alleged that the investigation into the FIR lodged by Rahman's wife had not been properly conducted.

The State, on the other hand, relied upon the post-mortem and forensic reports, according to which no external injury was detected on the body and the cause of death was “syncope following acute or chronic coronary insufficiency”. It was also submitted that the petitioner's case had undergone a “conspicuous change” over time and that the writ petition was liable to be dismissed.

Considering the material on record, the High Court noted that it was an “undeniable fact” that Rahman had been picked up by police personnel led by respondent no.6 after midnight, brought to Kalain Patrol Post and, sometime after being arrested and detained there, had collapsed.

The Court further noted that the respondents had not specifically denied that the arrest was not made on the strength of any warrant, that Rahman had not been given notice under Section 41A CrPC before arrest, and that there had been no compliance with Sections 41B, 50 and 50A CrPC.

It also recorded that while Rahman was being shifted in a collapsed condition from Kalain FRU to Silchar Medical College and Hospital, situated around 28-30 kilometres away, he was taken in a police vehicle instead of the ambulance available at the FRU. The police personnel had also not informed his family members or taken any family member along.

The Court accordingly held that Rahman's arrest was illegal for non-compliance with Sections 41B, 41C, 50 and 50A CrPC.

It further observed, “Thus, prima facie, the death of Md. Azizur Rahman had occurred during illegal police custody and therefore, the petitioner along with the other family members of Md. Azizur Rahman are found entitled to monetary compensation.”

The Court, however, declined to express any view on the contentious issues relating to the alleged custodial torture and criminal liability. It noted that the final report initially submitted in the criminal case had been rejected and reinvestigation ordered. After another final report was subsequently filed, the Chief Judicial Magistrate declined to accept it and directed registration of a complaint case, which was pending adjudication.

The Court observed that any finding on the merits of those allegations could prejudice either the complainant or the accused and therefore held that the matter should be left to the Trial Court to adjudicate “without being influenced by anything contained in this order”.

The High Court nevertheless held that Rahman “had died on 07.07.2012, while in police custody” and that the manner of arrest was without compliance with Sections 41B, 41C, 50 and 50A CrPC.

It consequently directed the Assam Government's Home and Political Department to pay ₹5 lakh compensation to the petitioner and other legal representatives/heirs of the deceased.

The Court clarified that the compensation was “palliative in nature” and was without prejudice to the right of the petitioner or other family members to claim higher compensation before the competent Civil Court.

The amount was directed to be paid within three months from service of the certified copy of the order, failing which it would carry interest at 6% per annum. The State was also given liberty to recover the compensation and interest from the concerned police or other officials if they were found guilty in departmental proceedings.

The writ petition was accordingly partly allowed.

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